Tinker v. Des Moines

 Tinker Group Script

Nick: 

"I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never come between us and the best our school can be. He is firm enough to give it everything."

Matthew Fraser delivered this speech supporting a friend running for student council. He may have expected to get detention or even suspension, but he couldn’t have known it would become a  showdown on our nation’s most prominent judicial stage--the Supreme Court.  

1986’s Bethel v. Fraser represents a single point in the line of cases asking the question: If you're a student in public school where do speech rights begin and end

The answer to this question has been hotly debated since the 1940's, and the issue came to a head in 1969. Three high school and middle school students in Des Moines made headlines for wearing black armbands to school in a Vietnam War protest. This school controversy rose all the way to the Supreme Court in Tinker v. Des Moines. It established a doctrine that would twist and morph as the years went on until 2007, when Alaska teens came under scrutiny for capturing a television camera’s attention with a banner proclaiming “BONG HiTS 4 JESUS.”

Since Tinker, students' rights in schools have been significantly narrowed. Mary Beth Tinker, a petitioner in the case expressed her opinion about this narrowing of students' right: (MB 12:45 – 13:15) "it's been going on for quite a while, the reduction of students' rights and it's not only at the courts but in other ways also. The climate in schools I think is very repressive towards students right now. There's a low respect generally I think in our culture for young people." If this is the case, then is there any hope for students' rights? With the Court wielding considerable power and setting limits on student speech, its decisions continue to have a tremendous impact on the day to day lives of students around the country. 

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Tinker v. Des Moines

The story of Tinker begins in Iowa with two siblings- John Tinker, age 15, and Mary Beth Tinker, age 13. The brother and sister had been watching coverage of the Vietnam War on television and wanted to voice their opposition to the military action. People in the community had been wearing black armbands to protest the Vietnam  War. When the school board caught wind of the Tinkers' plan, they banned the armbands in school.

The two Tinkers, with their friend Christopher Eckhardt, decided to don black armbands with peace symbols and wear them to school.  The Des Moines school board caught wind of this plan and hastily passed a rule banning armbands in schools. Any disobedient students faced suspension. The team decided to defy that rule. Ms. Tinker still recalls that day: 1:30 "The funny thing is, I went to the principal's office and they asked me to remove the armband, and I did, but I was still suspended." The Iowa Civil Liberties Union contacted the family, and the lawsuit was born. Young Mary Beth Tinker and her fellow students weren't trying to cause a scene in their school or create controversy, they were simply trying to make a statement, and were still respecting authority.

Justice Abe Fortas wrote the majority opinion for Court. He first asked: what kind of speech is this? The use of a black armband might be symbolic, or 'speech plus'. But Fortas disagreed, and declared that this speech was "akin to pure speech".

Fortas asked himself if their speech was political.  It was. They were protesting the war in Vietnam. Regardless of whether or not the school board members personally opposed their view, the school's rules required neutrality. The Court held that "state-operated schools may not be enclaves of totalitarianism." 

Mary Beth held this same view:

 MMB (29:22-29:40; "You have other kids wearing symbols, wearing buttons, even iron crosses and so if those were allowed and we weren't allowed to do the exact same thing then it's so clearly viewpoint discrimination") Was the speech disruptive? The Court agreed that it was not. Mary Beth recalled no disruption either (MB 28:47-28:51 and 29:01-29:18):  "Ours was not disruptive at all...like Justice Marshall said in the oral arguments, are you saying that a handful of students wearing an armband disrupted a school of eighteen hundred students? And it was pretty clear that there was no disruption of anything" 

Mary Beth, John, and Christopher were simply articulating their views, a right Fortas argued they had, since "students do not shed their rights at the schoolyard gate." In fact, Loyola law professor Laurie Levenson argues that students need to use schools as a forum to articulate their ideas:  "Schools are where students really  start to form their opinions about critical social issues. If we shut down speech in school, then the question is are we still educating students?" 

But not all Justices took this view. Justice Hugo Black believed wearing armbands was not equivalent to speech. More importantly, he wrote that a public school was not the appropriate place to protest and exercise free speech. In his view, the school board successfully predicted the disruption caused by the armbands, and deference should be given to local authorities better suited to legislate for their schools. 

His opinion embodies the doctrine of in loco parentis, which implies that schools, not courts, have the power and responsibility to regulate what students can and cannot do in school. Even though Black couldn't assemble a majority in Tinker, his position would find more support in a number of the Court's later cases. All in all, both sides of the debate in Tinker would provide bases for future arguments both for and against the limiting of student speech rights in schools. 3:10: I didn't appreciate at the time that this would be such a landmark case that would affect students for years to come. 3:50 I didn't think of it as a landmark case that would set a precedent for so many years.

Erwin Chemerinsky, Dean of UC Irvine Law school, argues that 

while the precedent in Tinker aimed to protect students' free speech students' rights have nonetheless become extremely limited. "In the 40 years since Tinker, students have lost every free speech case before the Supreme Court.  Practically speaking, they do lose their First Amendment rights at the school house gate." 

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Bethel v. Fraser

The next major school speech case came in 1986: Bethel v. Fraser. The sexually suggestive speech that opened the segment, that was from Bethel. Judgment on Fraser's school prank came hard and fast. Chief Justice Burger made a clear distinction between political speech and the kind of "lewd and obscene speech" Fraser used. For a majority of the Court, the school's regulation was constitutional. It was central to the school's goal of a focused and effective learning environment.

The Court made clear that Tinker had reached too far in its near absolutist view of students' rights in school. student speech need not, as Justice Fortas had written in Tinker, create a "substantial disruption" to be subject to regulation. The Court, while recognizing that students do not lose their rights to free speech or expression when they arrive in school, made clear that students' rights are by no means the same as those of adults in other settings. According to Levenson,  "Being offensive is not enough to limit adult speech, but it is enough to limit student speech. And I really think that’s because the Supreme Court sees students in a different category and school officials in a different category. School officials somehow have the obligation, the responsibility to protect students from illegal behavior, dangerous behavior, and now, offensive behavior." (Laurie Levenson)

Justice Brennan agreed and emphasized that it wasn't the Court's duty to judge what was obscene, but rather to judge whether the school had the powers to define obscenity. The dissenters, Justices Marshall and Stevens, argued that Fraser's speech was neither disruptive nor inappropriate. Stevens made the case that Fraser was simply speaking in a manner consistent with day to day communication among average high school students and that Fraser had received no specific warning about the consequences of his speech.

Bethel v. Fraser specifically tightened student speech rights in schools. While the differentiation between Bethel and Tinker by the Court had implications for how administrations handled speech, the case also served as a transition into the overall trend towards a more rigid interpretation of student rights, which was furthered Morse v. Frederick.

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Morse v. Frederick

In 2007, the Court hinted at where it intends to go with students' free speech rights. In Morse v. Frederick, the Juneau-Douglas High School let students out of school early to participate in the 2002 Olympic Torch Relay. While there, Joseph Frederick held up a sign with the words “BONG HiTS 4 JESUS” across from his high school’s campus, catching the attention of media cameras. The principal approached Frederick, removed his sign, and suspended him.

When it came to the Supreme Court, the Justices further narrowed the Tinker doctrine. Justice Roberts’ opinion fortified the principles set forth in Bethel v. Fraser while relying heavily on the assumptions that students' rights of free speech and expression are not the same as the rights of adults in other settings and that no substantial disruption needs to exist for the school to regulate student speech. 

Under such standards, the Court was easily able to find that schools may restrict speech "reasonably regarded" as encouraging illegal drug use. But in a separate concurring opinion, Justice Alito made clear what type of student speech is untouchable--political speech. Thus, if Frederick had been holding a sign protesting the prohibition of marijuana, his speech would have been protected and untouchable. But here, he was just promoting illegal actions in a school-based setting.

In a case where the effect of the message is unclear, Alito believes that the benefit of the doubt should be given to free speech for students. To him, the decision had the potential detriment of limiting discussion on issues that are important to contemplate. However, his view was not supported by the majority and the rights of student speech have been narrowed. 

Quite contrary to Stevens, Justice Thomas argued in his concurrence that the Tinker doctrine should be completely overturned. He brought back the in loco parentis rationale that the Court so emphatically rejected in its sweeping pronouncement of students' rights in Tinker. The doctrine reflects an age-old philosophy--one that began in the dissent of Tinker--that schools, and not the courts, should judge what conduct and speech should be appropriate in schools. "I think that the Supreme Court would rather not be a national school board to be honest with you and that is why they are deferring to the local school boards but by doing so they’re just ratifying their actions. In other words, they’re saying, well, okay, we’re not the national school board but we're going to let the local school boards make these decision and by saying that in fact they are giving their stamp of approval. " (Laurie Levenson) 

The justices in Morse v. Frederick tackled whether or not the sign that Frederick held up was an example of political speech. When they decided it wasn't, there was essentially no hope that Frederick, or any other student, would be allowed to hold a sign or wear a t-shirt advertising the same language that these Alaskan teenagers did. The Supreme Court has upheld that political speech is separate from any other kinds of speech. However, both of the legal scholars we spoke to find this troublesome. Chemerinsky stated that he does not "believe that political speech is more protected by the First Amendment than other expression," and Levenson argued  that "it's problematic when you start to rank first amendment speech." 

Morse v. Frederick also provides another example of how, according to Chemerinsky, "...practically speaking the Black dissent from Tinker has triumphed as the schools have won in Bethel, Tinker, and Morse, and most lower court cases concerning speech. The Court no longer requires that there be proof of actual disruption.  Bethel and Morse show tremendous deference to school officials."

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Conclusion

  In speaking to two prominent legal scholars we find that student speech rights have become more than just a question of the limits of political speech, inappropriate speech, and social protest. Chemerinsky believes that "there will be a Supreme Court case about a student being punished for a speech that is perceived as a threat." Levenson's concern is more general:  "The next big issue is what are the other ways students speak: they speak on the internet, they speak through organizations, they speak on campus. The Supreme Court is probably going to have to look at each of those areas."

But both Chemerinsky and Levenson, as well as Mary Beth Tinker, agree on one thing: the Tinker doctrine has been narrowed enough. Levenson argues that students have only a narrow window to speak in schools. With this in mind, what can we expect from current cases in the lower courts, on the Supreme Court docket, and those that haven't even happened yet?

    We've seen cases on the lower courts that are likely to incite responses, from both sides of the aisle. A high school senior was suspended for creating a Facebook group expressing hatred of a teacher. Two separate opinions from a federal appeals court show that rules regarding false online profiles of school officials may not be protected student speech either. So, in the 21st century, our courts move from judging armbands and banners to blogs and tweets and its clear the issues of student speech are far from resolved.